Vanishing point: there’s no law against spying

Almost entirely absent from media reporting on the unauthorised disclosure of “top secret" information on Australia’s clandestine efforts to gather intelligence on the intentions of Indonesia is the legality of these activities and the disclosures themselves, and the motives behind the leakers.

Journalists have been quick to speculate that publication of details of Australia’s foreign espionage operations will seriously harm relations with Indonesia.

Less frequently are we told that “signals interception", or tapping into foreign government communications, is attempted by every sovereign state. In early 2011 the Chinese successfully hacked Julia Gillard’s parliamentary email and those of every member of cabinet for over a month.

Readers are left with the impression the spies have done something terribly wrong. A crucial and yet entirely unanswered question is what, if any, international laws Australia has broken. And, perhaps more significantly, what damage are these revelations doing to intelligence agencies’ capacity to gain insights on our most important near neighbour, which is also the world’s most populous Muslim-majority nation.

As always, the truth is less than convenient. “Espionage sits in the vanishing point of international law. It is a legal black hole," says Emily Crawford of Sydney University’s Centre for International Law.

Dr Crawford, who is an expert on the law of war, says there are no international treaties or laws preventing foreign spying. “It seems to be one of those things everyone knows happens, but nobody is going to voluntarily acknowledge they are doing," she says.

Alison Pert, another academic legal expert, concurs that espionage “is not addressed by international law".

“While every country in the world has laws on domestic espionage within their own jurisdiction, there is nothing explicit stopping it in terms of international law between countries."

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Dr Crawford says the “closest you come to any kind of international recognition of espionage is in the Geneva Convention" but this “only applies in times of armed conflict".

And all the Geneva Convention says is that spies who secretly infiltrate enemy lines are denied lawful combatant status and not entitled to be treated as prisoners of war.

Dr Pert says she is “not aware of any bilateral treaties that outlaw espionage and given the prevalence of spying it is hard to imagine there would be many such treaties".

“If you wanted to complain about spying, you would either have to argue that it constituted an intervention in the domestic affairs of another state, or was an abuse of diplomatic immunity. Even then your remedy is just declaring the spy persona non grata."

The Australian Signals Directorate manages numerous satellite dishes and antennae at stations at Shoal Bay near Darwin and Geraldton in Western Australia to snoop on private and public communications, including emails, faxes, telephone calls, video, images and files that are transmitted via radio or to satellites used by China, Indonesia, India, Japan, Russia, Pakistan and others.

“If you are collecting intelligence from your own soil and listening to other states communications it is hard to see what international law rules you are breaking," Dr Pert says in this context.

So what’s her advice to Tony Abbott? “Sure conduct espionage – but don’t get caught, and try not to make enemies of your friends."